Supreme Court

SCOTUSblog: Divided court blocks Texas from enforcing social media law

By Amy Howe

The Supreme Court on Tuesday sided with the technology industry and blocked a controversial Texas law that bars large social media platforms like Facebook and Twitter from removing posts based on the viewpoints they express.

The justices divided 5-4 in an ideologically scrambled vote. Three of the court’s conservatives (Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett) joined two liberals (Justices Stephen Breyer and Sonia Sotomayor) in putting the law on hold while lower courts continue to assess technology companies’ constitutional challenge to the law. The other three conservatives (Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch) and one liberal justice (Elena Kagan) dissented.

The majority did not explain the reasoning behind its brief order. Alito wrote a six-page dissent arguing that the court’s intervention to block the law is premature. Thomas and Gorsuch joined that dissent. Kagan did not join Alito’s opinion, but she separately indicated that she, too, would have allowed the law to take effect. She did not elaborate on her thinking.

New York Times: Supreme Court Blocks Texas Law Regulating Social Media Platforms

By Adam Liptak

Justice Alito wrote that the issues were so novel and significant that the Supreme Court would have to consider them at some point.

“This application concerns issues of great importance that will plainly merit this court’s review,” he wrote. “Social media platforms have transformed the way people communicate with each other and obtain news. At issue is a groundbreaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”

Justice Alito said he was skeptical of the argument that the social media companies have editorial discretion protected by the First Amendment like that enjoyed by newspapers and other traditional publishers.

“It is not at all obvious,” he wrote, “how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

Reason (Volokh Conspiracy): Government Can’t Compel the Creation of Wedding Websites

By Dale Carpenter

Today Eugene and I filed an amicus brief in the Supreme Court in support of the petitioners in 303 Creative LLC v. Elenis, arguing that wedding-website designers cannot be required by a state public accommodations law to create website designs for same-sex couples. The Tenth Circuit erred in concluding otherwise, undermining a freedom critical to the LGBT-rights movement itself.

Here is the Summary of Argument:

The Courts

Newsweek: Yes, Big Tech Are Common Carriers

By Adam Candeub and Clare Morell

Can Big Tech companies be treated as common carriers? This is the key question at stake in several current legal battles over states’ efforts to combat Big Tech’s censorship, bias and self-preferencing habits.

As we have argued before, the answer is yes. And the time is now.

Common carrier law, which has historically regulated railroads, telegrams, telephones, cable and other dominant communications and transportation networks, requires equal treatment for users. It is broad, expansive and courts have ruled it consistent with the Constitution for over a century.

Florida and Texas passed statutes last year that require the fair, unbiased treatment of social media users. The Ohio attorney general also brought a lawsuit asking an Ohio state court to declare that Google is a common carrier. Big Tech, of course, opposed all these efforts in the courts.

Now all three battles are coming to a head.

Courthouse News: Black Lives Matter mural

The Second Circuit affirmed the dismissal of a conservative women’s group’s First Amendment challenge to New York City’s funding of a Black Lives Matter mural in front of Trump Tower, finding the city didn’t discrimination against the group by denying its request to paint its own mural.

Click here to read the opinion.  

Free Expression

The Nation: The ACLU Never Stopped Defending Free Speech

By David Cole

We continue to believe that the First Amendment is the foundation of our democracy, and we defend it for precisely that reason. It remains the best protection for those who lack power, and for those pressing for equal treatment. It protects our ability to speak out, to organize, to associate with like-minded others, to march in the streets, and to demand change from our government. It’s the lifeblood of Black Lives Matter, #MeToo, and the LGBTQ movement—and of anti-abortion activists, gun rights advocates, and libertarians. Yes, it extends to the powerful and hateful as well as the marginalized. That’s the thing about rights. They apply universally. But if you are in the minority, whatever side you are on, there is no more important safeguard. None.

Online Speech Platforms

Daily Wire: Libs Of TikTok Faces More Censorship From Major Social Media Platform

By Ben Zeisloft

Libs of TikTok — an account known for reposting videos of progressive activists — was banned from running Twitter ads on Tuesday.

A notice from Twitter — shared by Babylon Bee CEO Seth Dillon and retweeted by Libs of TikTok — said that “a user associated with your account is ineligible to participate in the Twitter ads program at this time.” Any active campaigns on Libs of TikTok “promoting a user or its Tweets will no longer run,” according to the notice.

PACs

Roll Call: Ethical questions cloud Zinke’s ‘SEAL PAC’

By John M. Donnelly

SEAL PAC and some of its personnel, including Catron, are shadowed by ethical questions beyond whether the group represents its purpose accurately to the public.

Only about 12 percent of the roughly $5.8 million the group spent so far in the 2022 election cycle has gone to candidates, and some 87 percent has gone to the group’s operating expenditures, a CQ Roll Call analysis of federal records shows. 

In the 2020 election cycle, the group spent just 5 percent of the more than $9 million it raised on candidates, records show. 

The Center for Responsive Politics reported in 2019 that some two-thirds of the group’s money at that point had gone to a handful of Washington, D.C., vendors that shared the same personnel and addresses.

Catron blamed the high cost of stamps and paper as the main reasons for the high operating costs, and he said the organization spends as much “as humanly possible” on candidates.

But Michael Beckel, research director at Issue One, a bipartisan advocacy group that seeks to reduce the role of money in politics, said spending so much on operating costs and so little on politics is unusual for a PAC. 

“Fundraising professionals often say it takes money to raise money, but if you’re spending so much money on overhead and operations that you only have a paltry sum leftover to spend on actual political contributions, it raises serious questions about your operation,” Beckel said via email.

Absent cases of fraud, however, federal election law currently permits PACs great flexibility in who or what they spend their money on, experts said. Nothing on the books strictly requires that PACs must support only the kind of candidates they say they are supporting. 

The States

Voice of OC: ACLU Calls Out Irvine School Board For Suppressing Public Comments

By Noah Biesiada

The American Civil Liberties Union is questioning the Irvine Unified School District board’s policy of stopping any public commenters from criticizing their staff’s work in a new letter to the panel last Tuesday…

The policy [the school board president] referenced was titled 9323 Rules of Conduct, and includes two clauses the ACLU called out as unconstitutional. 

“No person shall orally initiate charges or complaints against individual employees of the District at a public meeting of the Board,” the rules read. “All such charges or complaints shall be presented to the Superintendent and/or the Board in writing, signed by the complainant.” 

The rules also include a section blocking anyone from making comments that reflect adversely on the staff and board…

The rules also state that it’s at the board president’s discretion whether or not to allow the person to keep talking if they’re violating those rules. ..

“It is a bedrock principle of free speech that ‘a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing,’” wrote Peter Eliasberg, the Southern California ACLU’s chief counsel. “(The school board code) prohibits ‘adverse’ comments while allowing positive or neutral comments.”

The civil rights group also took issue with another rule, which forces speakers to identify themselves with their name and address, claiming that commenters wouldn’t criticize the board if they knew where they lived. 

New York Times: Help Wanted: State Misinformation Sheriff

By Cecilia Kang

[Connecticut] plans to spend nearly $2 million on marketing to share factual information about voting, and to create its first-ever position for an expert in combating misinformation. With a salary of $150,000, the person is expected to comb fringe sites like 4chan, far-right social networks like Gettr and Rumble, and mainstream social media sites to root out early misinformation narratives about voting before they go viral, and then urge the companies to remove or flag the posts that contain false information.